Sita Ram Singh v. State of UP — 1970 DIGILAW 280 (ALL)

ORDER S.N. Singh, J. - Mr. Ram Surat Singh made a statement before me that under some misapprehension of fact he had earlier made a statement that Sheo Balak Singh was dead. As a matter of fact Sheo Balak Singh is alive and this fact has been accepted by Sri R.S. Misra, learned Counsel for the Respondents. As such there is no necessity of bringing the heirs of Sheo Balak Singh on the record. 2. This petition Under Article 226 of the Constitution arises out of consolidation proceedings. It appears that chaks were carved out u/s 20 of the UP Consolidation of Holdings Act and necessary notices were issued. Necessary publication was also made on 30th November 1963. On 29th June 1964 the Petitioners filed an objection to the chaks already carved out by the Consolidation Officer. The grievance of the Petitioners was that they were not served with any notice of CH Form 23 and that every thing was done in a fraudulent manner because the Assistant Consolidation Officer and the Lekhpal were residing in the house of the contesting Respondent, Radhey Shyam. The Consolidation Officer called for a report and after having received the report about non-service on the Petitioners condoned the delay and directed a date to be fixed for the final disposal of the case. 3. Against the order of the Consolidation Officer an appeal was preferred by the opposite party No. 5, Radhey Shyam. The appeal was allowed. The Settlement Officer (Consolidation) was of the opinion that notice issued for the tenureholders was served on one Sheo Nath who was a cotenureholder along with the Petitioners. In his view this was sufficient service and since no sufficient cause had been shown, the Petitioners were not entitled to the benefit of Section 5 Limitation Act. Accordingly, he set aside the order of the Consolidation Officer and dismissed the objection filed by the Petitioners. 4. A revision was preferred against the decision of the Settlement Officer (Consolidation) and the Dy. Director of Consolidation was of the opinion that there was some manipulation done in the records of the consolidation authorities and that the notice showed that it was served not on Sheo Nath but really it appears to have been served on Sheo Balak. 4. A revision was preferred against the decision of the Settlement Officer (Consolidation) and the Dy. Director of Consolidation was of the opinion that there was some manipulation done in the records of the consolidation authorities and that the notice showed that it was served not on Sheo Nath but really it appears to have been served on Sheo Balak. Having arrived at this conclusion, he maintained the order of the Settlement Officer (Consolidation) but he was of the opinion that steps should be taken against the staff of the consolidation department who had colluded with one party or the other in the matter of service of the summonses. Against the orders of the Settlement Officer (Consolidation) and the Dy. Director of Consolidation the present writ petition has been filed. 5. It has been contended on behalf of the Petitioners that their objection was wrongly rejected by the Deputy Director of Consolidation and the Settlement Officer (Consolidation) as barred by time. The contention is that the period of limitation for filing the objection started from the date of the service of the notice on the tenure-holder. In the instant case it is submitted that even accepting what the Dy. Director of Consolidation and the Settlement Officer (Consolidation) have held, is correct, the service would be sufficient only on Sheo Balak, one of the co-tenureholders. The other two co-tenureholders Sita Ram and Satya Narain have not been proved to have been served with notice. Consequently, there was no question of limitation involved in the present case. The Consolidation Officer in the circumstances of the case had rightly condoned the delay and directed the case to be heard on merits. The learned Counsel supported his submission by citing the cases of Sheo Prasad v. Chhotey Lal 1966 RD 375 and Chandrika v. Deputy Director of Consolidation 1967 RD 125 . As against this submission of the learned Counsel was pointed out by the learned Counsel i for the opposite party No. 5 that the Petitioner No. 1 is a Pradhan of the village and actual exchange of possession in pursuance of the final allotment of chaks was done, on 29th February 1964 and he had signed the document showing the exchange of possession over the chaks allotted to different tenureholders. It is contended that in such circumstances it is difficult to believe that the Petitioner had no knowledge about it. It is contended that in such circumstances it is difficult to believe that the Petitioner had no knowledge about it. Further it is submitted that on the finding recorded by the Deputy Director of Consolidation about service, this Court should not interfere Under Article 226 of the Constitution. 6. I have considered the respective submissions of the learned Counsel for the parties. I am of the opinion that on the facts of the present case this is a fit case which should be allowed. There is allegation in the writ petition that the Assistant Consolidation Officer and the Lekhpal were residing in the house of the contesting opposite party and these officials designedly concealed everything from the Petitioner and sided with the opposite party No. 5. It is denied by the opposite party Mo. 5 that there was any collusion between the Assistant Consolidation Officer and the opposite party, No. 5 but the fact that Assistant Consolidation Officer concerned was residing in his house was not denied. It is also admitted fact that there is a rice mill of the Petitioners which is close to the disputed plot. It is difficult to believe that if these Petitioners had knowledge about the carving out of the chaks, they would not have filed an objection. No reason has been shown as to why these persons did not file any objection inspite of the knowledge of the carving out of the chaks to their detriment. Section 20(2) of the Consolidation of Holdings Act which is relevant for the purpose of this case provides 15 days limitation from the date of the receipt of the notice. This would mean that the notice should be served on the tenure holders concerned. In the instant case of the finding of the Settlement Officer (Consolidation) one Sheo Nath was served with a notice who is said to be a co tenure holder of the Petitioners. According to the finding of the Deputy Director of Consolidation one of the cotenure holders only was served. Thus in the case of the Petitioners Nos. 1 and 2 there was no question of limitation. In Lautavan v. Dy. According to the finding of the Deputy Director of Consolidation one of the cotenure holders only was served. Thus in the case of the Petitioners Nos. 1 and 2 there was no question of limitation. In Lautavan v. Dy. Director of Consolidation 1966 RD 89 it was held that a person cannot be deemed to have had notice of the proceedings for the adjustment of the chak of the third person merely because he is the brother of the remaining two Petitioners who had had notice of the proceedings and had appeared and had not objected to the adjustment proposed by the Consolidation Officer. It is not improbable that the, two brothers might have acted on their own. There is nothing on record to show that of the two brothers one is the manager of a joint family consisting of three brothers. It is not said that they constitute a joint family. As the third brother was not given notice of the proceedings the order of the Deputy Director of Consolidation is in violation of the principles of natural justice. 7. In Sheo Prasad v. Chhotey Lal (supra) a learned Single Judge of this Court held that "where the revision was allowed but the order was passed without, any notice on Petitioner No. 1, the fact that Petitioner No. 2 who had throughout been doing Pairvi on behalf of all the brothers was served was present and was heard cannot be accepted as sufficient. Petitioner No, 1 had, to be served and a* opportunity given to him to appear in person, or through counsel." 8. In Chandrika v. Dy. Director of Consolidation (supra) it was held that "if the circumstances and the probabilities of the case indicate that the counsel of a party was not heard and the party himself was also not present, the order passed in revision is liable to be set aside and the revision application, restored to its original number to be heard and disposed of in accordance with law after giving an opportunity to the counsel of the party." 9. Service according to the Dy. Director of Consolidation also appeared to be suspicious. In this view of the matter justice demanded that the order of the Consolidation Officer, who had only directed the case to be decided on merits should have been maintained. Service according to the Dy. Director of Consolidation also appeared to be suspicious. In this view of the matter justice demanded that the order of the Consolidation Officer, who had only directed the case to be decided on merits should have been maintained. If the case is not decided on merits, there is every likelihood of grave injustice being done to the Petitioners. After the orders of the Settlement Officer (Consolidation) and the Dy. Director of Consolidation are quashed, it will be open to the parties to put forth their cases before the authority concerned and the officer concerned will decide the matter afresh after looking into equities between the parties. Mr. R.S. Misra, apprehends that once the order is quashed, his client's interest will be prejudiced. This is made clear that this Court has expressed no opinion on the merits of the case the authority concerned will decide the case on merits unhampered by the observations of this Court made in deciding this writ petition. 10. Before I close the judgment this has to be mentioned that after I had dictated the judgment it was pointed out by Mr. R.S. Misra that this Court has dictated the judgment on the assumption that the new Act as amended by Act No. VIII of 1963 applies to the facts of this case. He contended that since consolidation had started when Act No. XXXVIII of 1958 was in force it is the old Act of 1958 which will apply and in that eventuality the limitation would start from the date of publication and no question of notice to the Petitioners will arise. 11. Having heard learned Counsel for the parties on this point I am of opinion that it is the new Act that applies to the facts of the case. In this case publication of proposals was made on the 30th November 1963, Section 47 of Act No. VIII of 1963 Sub-clause (1) applies and in view of Section 47 Sub-clause (1) of Act No. VIII of 1963 I am of the opinion that the present case will be governed by the new Act of 1963 and not by the old Act of 1958. 12. If the contention of Sri R.S. Misra is accepted that the old Act of 1958 applied the Petitioners will be in a better position and the impugned orders can safely be quashed as without jurisdiction. 13. 12. If the contention of Sri R.S. Misra is accepted that the old Act of 1958 applied the Petitioners will be in a better position and the impugned orders can safely be quashed as without jurisdiction. 13. In the instant case the Consolidation Officer had condoned the delay and directed the rehearing of the case. Such an order is not appealable in any of the two Acts with the result that the order of the Settlement Officer (Consolidation) is without jurisdiction. The order of the Dy. Director would be within jurisdiction in the amended Act VIII of 1963 but if the Act of 1958 is held to be applicable the revisional order will be without jurisdiction for under the 1958 Act revision could be entertained against second appellate order only. Thus on the argument of Sri Misra that the old Act of 1958 applied the impugned orders are liable to be quashed on the ground of lack of jurisdiction. 14. In the result, this petition is allowed and the orders of the Dy. Director of Consolidation dated 20th January 1966 and that of the Settlement Officer (Consolidation) dated 29th January 1965 (annexure 'C' and 'B' respectively) are hereby quashed. The case will be decided by the Consolidation Officer on merits. Petition allowed.